TEXTER v. MIDDLETOWN DIALYSIS CENTER INC

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Supreme Court, Appellate Division, Second Department, New York.

Gary TEXTER, etc., respondent, v. MIDDLETOWN DIALYSIS CENTER, INC., et al., appellants, et al., defendants.

Decided: October 31, 2005

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, and JOSEPH COVELLO, JJ. O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Dennis T. Doyle and Montgomery Effinger of counsel), for appellants. Mark A. Campbell and Edgar P. Campbell (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Julie T. Mark] of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, the defendants Middletown Dialysis Center, Inc., and Pat Mann appeal from a judgment of the Supreme Court, Orange County (McGuirk, J.), entered April 1, 2004, which, upon a jury verdict awarding damages in the principal sums of $200,000 for pain and suffering and loss of enjoyment of life and $197,367 for medical and hospital bills, is in favor of the plaintiff and against them.

ORDERED that the judgment is affirmed, with costs.

 The defendants' contention that the plaintiff's expert was unqualified to give an expert opinion on the standard of care and treatment applicable to dialysis centers is without merit.   The testimony of the plaintiff's expert sufficiently established his qualifications as a medical expert and his familiarity with the standards of care applicable to fall protocols at the time of the decedent's accident.   Once a medical expert establishes his or her knowledge of the relevant standards of care, he or she need not be a specialist in the particular area at issue to offer an opinion.   Any lack of skill or expertise goes to the weight of his or her opinion as evidence, not its admissibility (see Erbstein v. Savasatit, 274 A.D.2d 445, 711 N.Y.S.2d 458;  see also Bodensiek v. Schwartz, 292 A.D.2d 411, 739 N.Y.S.2d 405;  Allone v. University Hosp. of N.Y. Univ. Med. Ctr., 235 A.D.2d 447, 448, 652 N.Y.S.2d 1011;  Julien v. Physician's Hosp., 231 A.D.2d 678, 680, 647 N.Y.S.2d 831;  Behan v. Data Probe Intl., 213 A.D.2d 439, 440-441, 623 N.Y.S.2d 886;  Ariola v. Long, 197 A.D.2d 605, 602 N.Y.S.2d 666).

 “To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove (1) the standard of care at the facility where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of the injury” (Elliot v. Long Is. Home, Ltd., 12 A.D.3d 481, 482, 784 N.Y.S.2d 615;  see Pace v. Jakus, 291 A.D.2d 436, 737 N.Y.S.2d 123;  Berger v. Becker, 272 A.D.2d 565, 709 N.Y.S.2d 418).   To sustain this burden, a plaintiff must present expert testimony that the defendants' conduct constituted a deviation from the requisite standard of care (see Pace v. Jakus, supra;  Berger v. Becker, supra ).   Here, there was legally sufficient evidence to support the jury's verdict finding the defendants Middletown Dialysis Center and Patricia Mann liable for negligence, arising from the decedent's fall at the conclusion of dialysis treatment.

 Moreover, the verdict was not against the weight of the evidence.   Where both sides present expert testimony in support of their respective positions, it is for the jury to decide which expert's testimony is more credible (see Velez v. Policastro, 1 A.D.3d 429, 431, 766 N.Y.S.2d 684;  Cavlin v. New York Med. Group, 286 A.D.2d 469, 471, 730 N.Y.S.2d 337;  Ibrahim v. Lombardo, 229 A.D.2d 423, 424, 644 N.Y.S.2d 519).

 The awards of damages for pain and suffering and loss of enjoyment of life did not deviate materially from what would be considered reasonable compensation, and the award for medical and hospital bills was supported by the evidence (see CPLR 5501[c];  Lukas v. Trump, 281 A.D.2d 400, 721 N.Y.S.2d 394;  Iovine v. City of New York, 286 A.D.2d 372, 373, 729 N.Y.S.2d 182;  Kahl v. MHZ Operating Corp., 270 A.D.2d 623, 703 N.Y.S.2d 842;  De Coufle v. Frederick Benedict, Inc., 93 A.D.2d 805, 460 N.Y.S.2d 604).

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